EXCHANGE AGREEMENT
Between
OXFORD CAPITAL CORP.
CREST OUTSOURCING, INC.
And
THE SHAREHOLDER
Dated February 14, 1997
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TABLE OF CONTENTS
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ARTICLES PAGE
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ARTICLE 1 REPRESENTATIONS, COVENANTS, AND WARRANTIES OF CREST
OUTSOURCING, INC.
Sections
--------
1.01 Organization 1
1.02 Capitalization 2
1.03 Subsidiaries and Predecessor Corporation 2
1.04 Financial Statements 2
1.05 Information 3
1.06 Options and Warrants 3
1.07 Absence of Certain Changes or Events 3
1.08 Title and Related Matters 5
1.09 Litigation and Proceeding 5
1.10 Contracts 5
1.11 Material Contracts Default 6
1.12 No Conflict With Other Instruments 6
1.13 Governmental Authorizations 6
1.14 Compliance With Laws and Regulations 7
1.15 Approval of Agreement 7
1.16 Material Transactions of Affiliations 7
1.17 Labor Relations 7
1.18 Crest Outsourcing, Inc., Schedules 7
ARTICLE II REPRESENTATIONS, COVENANTS, AND WARRANTIES OF THE
SHAREHOLDERS
2.01 Ownership of Crest Outsourcing, Inc., shares. 9
ARTICLE III REPRESENTATIONS, COVENANTS, AND WARRANTIES OF OXFORD
Sections
--------
3.01 Organization 10
3.02 Capitalization 10
3.03 Subsidiaries 10
3.04 Financial Statements 10
3.05 Information 12
3.06 Options and Warrants 12
3.07 Absence of Certain Changes or Events 12
3.08 Title and Related Matters 13
3.09 Litigation and Proceedings 13
3.10 Contracts 14
3.11 No Conflict With Other Instruments 14
3.12 Governmental Authorities 14
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ARTICLES PAGE
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3.13 Compliance With Laws and Regulations 14
3.14 Insurance 14
3.15 Approval of Agreement 14
3.16 Continuity of Business Enterprises 14
3.17 Material Transactions or Affiliations 15
3.18 Employment Matters 15
3.19 Oxford Schedules 15
ARTICLE IV PLAN OF EXCHANGE
Sections
--------
4.01 The Exchange 16
4.02 Anti-Dilution 17
4.03 Closing 17
4.04 Closing Events 17
4.05 Termination 17
ARTICLE V SPECIAL COVENANTS
Sections
--------
5.01 Stockholder Meeting of Oxford 19
5.02 Access to Properties and Records 19
5.03 Delivery of Books and Records 19
5.04 Special Covenants and Representations
Regarding the Exchanged Oxford Stock 19
5.05 Third Party Consents and Certificates 20
5.06 Actions Prior to Closing 20
5.07 Sales Under Rules 144 or 145, If Applicable 21
5.08 Indemnification 22
ARTICLE VI CONDITIONS PRECEDENT TO OBLIGATIONS OF OXFORD
Sections
--------
6.01 Accuracy of Representations 22
6.02 Officer's Certificates 22
6.03 No Material Adverse Change 23
6.04 Good Standing 23
6.05 Officer and Director Questionnaires 23
6.06 Other Items 23
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ARTICLE VII CONDITIONS PRECEDENT TO OBLIGATIONS OF CREST OUTSOURCING, INC.
Sections
--------
7.01 Accuracy of Representation 24
7.02 Stockholder Approval 24
7.03 Officer's Certificate 24
7.04 No Material Adverse Change 24
7.05 Good Standing 24
7.06 No Action by SEC 24
7.07 Other Items 25
ARTICLE VIII MISCELLANEOUS
Sections
--------
8.01 Brokers 25
8.02 Governing Law 25
8.03 Notices 25
8.04 Attorney's Fees 27
8.05 Confidentiality 27
8.06 Schedules, Knowledge 27
8.07 Third Party Beneficiaries 27
8.08 Entire Agreement 27
8.09 Survival; Termination 27
8.10 Counterparts 28
8.11 Amendment or Waiver 28
EXHIBITS
Exhibit "A"
Letter of Representation
Oxford Schedules
Crest Outsourcing, Inc. Schedules
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EXCHANGE AGREEMENT
THIS EXCHANGE AGREEMENT (hereinafter referred to as the "Agreement"), is
entered into as of this 14th day of February, 1997, by and among Oxford Capital
Corp., a Nevada corporation (hereinafter referred to as "Oxford"); Crest
Outsourcing, Inc., a corporation organized under the laws of the State of Nevada
(collectively hereinafter referred to as "Crest"), and American Teletronics,
Inc., (hereinafter referred to as "Shareholder") upon the following premises:
Premises
This Agreement provides for the acquisition by Oxford of 100% of the issued
and outstanding shares of Crest in exchange for 5,333,333 shares of Oxford
common stock and 5,333,333 Warrants with an exercise price of $1.00
("Warrants"), on the terms and conditions hereinafter provided, all for the
purpose of effecting a so-called "tax-free" reorganization pursuant to Sections
368(a)(1)(B) of the Internal Revenue Code of 1986, as amended.
Agreement
NOW THEREFORE, on the stated premises and for and in consideration of the
mutual covenants and agreements hereinafter set forth and the mutual benefits to
the parties to be derived hear from, it is hereby agreed as follows:
ARTICLE I
REPRESENTATIONS, COVENANTS, AND WARRANTIES OF CREST
As an inducement to, and to obtain the reliance of Oxford, Crest represents
and warrants as follows:
Section 1.01 ORGANIZATION. Crest is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Nevada and has the
corporate power and is duly authorized, qualified, franchised, and licensed
under all applicable laws, regulations, ordinances, and orders of public
authorities to own all of its properties and assets to carry on its business in
all material respects as it is now being conducted, including qualification to
do business as a foreign corporation in the states or countries in which the
character and location of the assets owned by it or the nature of the business
transacted by it required qualification except where failure to be so qualified
would not have a material adverse effect on its business. Included in the Crest
Schedules (as hereinafter defined) are complete and correct copies of the
Articles of Incorporation, as amended, of Crest as in effect on
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the date hereof. The execution and delivery of this Agreement does not, and the
consummation of the transactions contemplated hereby will not, violate any
provision of Crest's articles of incorporation or bylaws. Crest has taken all
actions required by law, ,Articles of Incorporation and By-Laws or otherwise to
authorize the execution and delivery of this Agreement. Crest has full power,
authority, and legal right and has taken all action required by law, its
memorandum and articles of association, and otherwise to consummate the
transactions herein contemplated.
Section 1.02 CAPITALIZATION. The authorized and issued share capital of
Crest, is $1,000 divided into 1,000 Ordinary Shares. All issued and outstanding
shares of Crest are legally issued, fully paid, and non-assessable and not
issued in violation of the pre-emptive or other rights of any person.
Section 1.03 SUBSIDIARIES AND PREDECESSOR CORPORATIONS. Crest does not have
any subsidiaries and does not own, beneficially or of record, any shares of any
other corporation, except as disclosed in Schedule 1.03. For purposes
hereinafter, Crest also includes those subsidiaries set forth on Schedule 1.03.
Section 1.04 FINANCIAL STATEMENTS.
(a) Included in the Crest Schedules is the audited consolidated
balance sheet of Crest and its subsidiaries at December 31, 1996, and the
related audited consolidated statements of profit and loss account and
consolidated statement of cash flows since inception, together with notes
to such statements and the opinion of Xxxxxxx, Xxxxxxx and Company, P.C.
with respect thereto.
(b) All such financial statements have been prepared in accordance
with generally accepted accounting principles generally accepted and
conforming to United States GAAP. The Crest balance sheet presents a true
and fair view as of its date of the financial condition of Crest. Crest did
not have, as of the date of such balance sheet, except as and to the extent
reflected or reserved against therein, any liabilities or obligations
(absolute or contingent) which should be reflected in a balance sheet or
the notes thereto, prepared in accordance with accounting principles
generally accepted in the United States, and all assets reflected therein
are properly reported and present fairly the value of the assets of Crest
in accordance with accounting principles generally accepted in the United
States. The statements of consolidated profit and loss account and
consolidated statement of cash flow reflect fairly the information required
to be set forth therein to United States GAAP.
(c) Crest has filed all income and/or franchise tax returns required
to be filed by it from inception to the date hereof. Included in the Crest
Schedules
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are true and correct copies of the income tax returns of Crest filed for
the prior three years. None of such income tax returns have been examined
by the appropriate tax authorities. Each of such income tax returns
reflects the taxes due for the period covered thereby, except for amounts
which, in the aggregate, are immaterial.
(d) Crest does not owe any unpaid taxes (including any deficiencies,
interest, or penalties) through February 28, 1997, for which Crest may be
liable in its own right or as a transferee of the assets of, or as a
successor to, any other corporation or entity. Furthermore, except as
accruing in the normal course of business, Crest does not owe any accrued
and unpaid taxes to the date of this Agreement.
(e) The books and records, financial and otherwise, of Crest are in
all material respects complete and correct and have been maintained in
accordance with good business and accounting practices.
(f) Crest has good and marketable title to its assets and, except as
set forth in the Crest Schedules or the financial statements of Crest or
the notes thereto, has no material contingent liabilities, direct or
indirect, matured or unmatured.
Section 1.05 INFORMATION. The information concerning Crest set forth in
this Agreement and in the Crest Schedules is complete and accurate in all
material respects and does not contain any untrue statement of a material fact
or omit to state a material fact required to make the statements made, in light
of the circumstances under which they were made, not misleading.
Section 1.06 OPTIONS OR WARRANTS. There are no existing options, warrants,
calls, or commitments of any character relating to the authorized and unissued
Crest common stock, except options, warrants, calls or commitments, if any, to
which Crest is not a party and by which it is not bound.
Section 1.07 ABSENCE OF CERTAIN CHANGES OR EVENTS. Except as set forth in
this Agreement or the Crest Schedules, since January 31, 1997:
(a) there has not been (I) any material adverse change in the
business, operations, properties, assets, or financial condition of Crest;
or (ii) any damage, destruction, or loss to Crest (whether or not covered
by insurance) materially and adversely affecting the business, operations,
properties, assets, or financial condition of Crest.
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(b) Crest has not (i) amended its Memorandum or Articles of
Association; (ii) declared or made, or agreed to declare or make, any
payment of dividends or distributions of any assets of any kind whatsoever
to stockholders or purchased or redeemed, or agreed to purchase or redeem,
any of its capital stock; (iii) waived any rights of value which in the
aggregate are extraordinary or material considering the business of Crest;
(iv) made any material change in its method of management, operation or
accounting; (v) entered into any other material transaction other than
sales in the ordinary course of its business; (vi) made any accrual or
arrangement for payment of bonuses or special compensation of any kind or
any severance or termination pay to any present or former officer or
employee; (vii) increased the rate of compensation payable or to become
payable by it to any of its officers or directors or any of its employees
whose monthly compensation exceeds $1,000; or (viii) made any increase in
any profit sharing, bonus, deferred compensation, insurance, pension,
retirement, or other employee benefit plan, payment, or arrangement made
to, for, or which its officers, directors, or employees;
(c) Crest has not (i) borrowed or agreed to borrow any funds or
incurred, or become subject to, any material obligation or liability
(absolute or contingent) except liabilities incurred in the ordinary course
of business; (ii) paid or agreed to pay any material obligations or
liability (absolute or contingent) other than current liabilities reflected
in or shown on the most recent Crest balance sheet, and current liabilities
incurred since that date in the ordinary course of business and
professional and other fees and expenses in connection with the preparation
of this agreement and the consummation of the transactions contemplated
hereby; (iii) sold or transferred, or agreed to sell or transfer, any of
its assets, properties, or rights (except assets, properties, or rights not
used or useful in its business which, is the aggregate have a value of less
than $1,000), or canceled, or agreed to cancel, any debts or claims (except
debts or claims which in the aggregate are of a value of less than $1,000);
(iv) made or permitted any amendment or termination of any contract,
agreement, or license to which it is a party if such amendment or
termination is material, considering the business or Crest; or (v) issued,
delivered, or agreed to issue or deliver any stock, bonds or other
corporate securities including debentures (whether authorized and unissued
or held as treasury stock); and
(d) to the knowledge of Crest, Crest has not become subject to any law
or regulation which materially and adversely affects, or in the future may
adversely affect the business, operations, properties, assets, or financial
condition of Crest.
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Section 1.08 TITLE AND RELATED MATTERS. Crest has good and marketable title
to all of its properties, inventory, interests in properties, and assets, real
and personal, which are reflected in the most recent Crest balance sheet or
acquired after that date (except properties, interests in properties, and assets
sold or otherwise disposed of since such date in the ordinary course of
business) free and clear of all liens, pledges, charges, or encumbrances except
(a) retention of title rights and statutory liens or claims not yet delinquent;
(b) such imperfections of title and easements as do not and will not materially
detract from or interfere with the present or proposed use of the properties
subject thereto or affected thereby or otherwise materially impair present
business operations on such properties; and (c) as described in the Crest
Schedules. Except as set forth in the Crest Schedules, Crest owns, free and
clear of any liens, claims, encumbrances, royalty interests, or other
restrictions or limitations of any nature whatsoever, any and all products it is
currently manufacturing, including the underlying technology and data, and all
procedures, techniques, marketing plans, business plans, methods of management,
or other information utilized in connection with Crest business. Except as set
forth in the Crest Schedules, no third party has any right to, and Crest has not
received any notice of infringement of or conflict with asserted rights of
others with respect to any product, technology, data, trade secrets, know-how,
propriety techniques, trademarks, service marks, trade names, or copyrights
which, singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would have a materially adverse affect on the business,
operations, financial condition, income, or business prospects or Crest or any
material portion of its properties, assets, or rights.
Section 1.09 LITIGATION AND PROCEEDINGS. Except as set forth in the Crest
Schedules, there are no actions, suits, proceedings, or investigations pending
or, to the knowledge of Crest after reasonable investigation, threatened by or
against Crest or affecting Crest or its properties, at law or in equity, before
any court or other governmental agency or instrumentality, domestic or foreign,
or before any arbitrator of any kind. Crest does not have any knowledge of any
material default on its part with respect to any judgment, order, injunction,
decree, award, rule, or regulation or any court, arbitrator, or governmental
agency or instrumentality or of any circumstances which, after reasonable
investigation, would result in the discovery of such a default.
Section 1.10 CONTRACTS.
(a) Except as included or described in the Crest Schedules, there are
no material contracts, agreements, franchises, license agreements, or other
commitments to which Crest is a party or by which it or any of its assets,
products, technology, or properties are bound other than those incurred in
the ordinary course of business;
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(b) All contracts, agreements, franchises, license agreements, and
other commitments to which Crest is a party or by which its properties are
bound and which are material to the operations of Crest taken as a whole
are valid and enforceable by Crest in all respects, except as limited by
bankruptcy and insolvency laws and by other laws affecting the rights of
creditors generally;
(c) Crest is not a party to or bound by, and the properties of Crest
are not subject to any contract, agreement, other commitment or instrument;
any charter or other corporate restriction; or any judgment order, writ,
injunction, decree, or award which materially and adversely affects, the
business operations, properties, assets, or condition of Crest; and
(d) Except as included or described in the Crest Schedules or
reflected in the most recent Crest balance sheet, Crest is not a party to
any oral or written (i) contract for the employment of any officer or
employee which is not terminable on 30 days or less notice; (ii) profit
sharing, bonus, deferred compensation, stock option, severance pay, pension
benefit or retirement plan, agreement, (iii) agreement, contract, or
indenture relating to the borrowing or money, (iv) guaranty of any
obligation, other than one on which Crest is a primary obliger, for the
borrowing of money or otherwise, excluding endorsements made for collection
and other guaranties of obligations which, in the aggregate do not exceed
more than one year or providing for payments in excess of $1,000 in the
aggregate; (v) collective bargaining agreement; (vi) agreement with any
present or former officer or director of Crest; or (vii) contract,
agreement, or other commitment involving payments by it of more than $1,000
in the aggregate.
Section 1.11 MATERIAL CONTRACT DEFAULTS. Crest is not in default in any
material respect under the terms of any outstanding contract, agreement, lease,
or other commitment which is material to the business, operations properties,
assets or condition of Crest and there is no event of default in any material
respect under any such contract, agreement, lease, or other commitment in
respect of which Crest has not taken adequate steps to prevent such a default
from occurring.
Section 1.12 NO CONFLICT WITH OTHER INSTRUMENTS. The execution of this
Agreement and the consummation of the transactions contemplated by this
Agreement will not result in the breach of any term or provision of, or
constitute an event of default under, any material indenture, mortgage, deed of
trust, or other material contract, agreement, or instrument to which Crest is a
party or to which any of its properties or operations are subject.
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Section 1.13 GOVERNMENTAL AUTHORIZATIONS. Except as set forth in the Crest
Schedules, Crest has all licenses, franchises, permits, and other governmental
authorizations that are legally required to enable it to conduct its business in
all material respects as conducted on the date hereof. Except for compliance
with securities and corporation laws, as hereinafter provided, no authorization,
approval, consent, or order of, declaration, or filing with, any court or other
governmental body is required in connection with the execution and delivery by
Crest of this Agreement and the consummation by the Shareholder of the
transaction contemplated hereby.
Section 1.14 COMPLIANCE WITH LAWS AND REGULATIONS. Except as set forth in
the Crest Schedules, to the knowledge of Crest, Crest has complied with all
applicable statues and regulations of any federal, state, or other governmental
entity or agency thereof, except to the extent that noncompliance would not
materially and adversely affect the business, operations, properties, assets, or
condition of Crest or except to the extent that noncompliance would not result
in the occurrence of any material liability for Crest.
Section 1.15 APPROVAL OF AGREEMENT. The board of directors of Crest has
authorized the execution and delivery of this Agreement by Crest and has
approved the agreement and the transactions contemplated hereby.
Section 1.16 MATERIAL TRANSACTIONS OR AFFILIATIONSet forth in the Crest
Schedules is a description of every material contract, agreement, or arrangement
between Crest and any predecessor and any person who was at the time of such
contract, agreement, or arrangement an officer, director, or person owning of
record, or known by Crest to own beneficially, 10% or more of the issued and
outstanding common stock of Crest and which is to be performed in whole or in
part after the date hereof of which was entered into not more than three years
prior to the date hereof. Except as disclosed in the Crest Schedules or
otherwise disclosed herein, no officer, director, or 10% shareholder of Crest
has, or has had since inception of Crest, any known interest, direct or
indirect, in any material transaction with Crest which was material to the
business of Crest. There are no commitments by Crest, whether written or oral,
to lend any funds, or to borrow any money from, or enter into any other material
transaction with, any such affiliated person.
Section 1.17 LABOR RELATIONS. Crest has not had work stoppage resulting
from labor problems. To the knowledge of Crest, no union or other collective
bargaining organization is organizing or attempting to organize any employee of
Crest.
Section 1.18 CREST SCHEDULES. Crest, prior to closing, will deliver to
Oxford the following schedules, which are collectively referred to as the "Crest
Schedules" and which consist of separate schedules dated as of the date of
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execution of this Agreement and instruments and dated as of such date, all
certified by the chief executive officer of Crest as complete, true, and correct
as of the date of this agreement in all material respects:
(a) a schedule containing complete and correct copies of Articles of
Incorporation and By-Laws , as amended, of Crest in effect as of the date
of this Agreement;
(b) a schedule containing the financial statements of Crest identified
in paragraph 1.04(a);
(c) a schedule containing a list indicating the name and address of
each shareholder of Crest together with the number of shares owned by him,
her or it;
(d) a schedule containing a description of all real property owned or
leased by Crest, together with a description of every mortgage, deed of
trust, pledge, lien agreement, encumbrance, claim, or equity interest of
any nature whatsoever in such real property;
(e) copies of all licenses, permits, and other governmental
authorizations (or requests or applications therefor) pursuant to which
Crest carries on or proposes to carry on its business (except those which,
in the aggregate, are immaterial to the present or proposed business of
Crest);
(f) a schedule listing the accounts receivable and notes and other
obligations receivable of Crest as of January 31, 1997, or thereafter other
than in the ordinary course of business of Crest, indicating the debtor and
amount, and classifying the accounts to show in reasonable detail the
length of time, if any, overdue, and stating the nature and amount of any
refunds, set offs, reimbursements, discounts, or other judgments which are
in the aggregate material and due to or claimed by such creditor;
(g) a schedule listing the accounts payable and notes and other
obligations payable of Crest as of January 31, 1997, or that arose
thereafter other than in the ordinary course of the business of Crest,
indicating the creditor and amount, classifying the accounts to show in
reasonable detail the length of time, if any, overdue, and stating the
nature and amount of any refunds, set offs, reimbursements, discounts, or
other adjustments, which in the aggregate are material and due or payable
to Crest respecting such obligations;
(h) a schedule setting forth a description of any material adverse
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change in the business, operations, property, inventory, assets, or
conditions of Crest since January 31, 1997, required to be provided
pursuant to section 1.07 hereof; and
(i) a schedule setting forth any other information, together with any
required copies of documents, required to be disclosed in the Crest
Schedules by sections 1.01 through 1.18.
Crest shall cause the Crest Schedules and the instruments and data
delivered to Oxford hereunder to be updated after the date hereof up to and
including the Closing Date.
It is understood and agreed that not all of the schedules referred to above
have been completed or are available to be furnished by Crest. Crest shall have
a period of twenty (20) days after the date hereof to provide such schedules. If
Crest cannot or fails to do so, or if Oxford reasonably finds the schedules
unacceptable, Oxford may terminate this agreement by giving written notice to
Crest within three (3) days after the schedules were due to be produced or were
provided.
ARTICLE II
REPRESENTATIONS, COVENANTS, AND WARRANTIES
OF THE SHAREHOLDER
As an inducement to, and to obtain the reliance of Oxford, the Shareholder
represents and warrants as follows:
Section 2.01 OWNERSHIP OF CREST SHARES. The Shareholder hereby represents
and warrants with respect to himself that he is the legal and beneficial owner
of the number of Crest shares set forth opposite his name at the foot of this
agreement, except that in respect of shares set forth opposite names of persons
other than the Shareholder such named persons are nominees for trusts of which
the Shareholder or his families are beneficiaries and all of such shares are
free and clear of any claims, charges, equities, liens, security interests, and
encumbrances whatsoever, and that it has full right, power, and authority to
transfer, assign, convey, and deliver its Crest shares subject to necessary
waivers or transfer pre-emptive rights; and delivery of such shares at the
closing will convey to Oxford good and marketable title to such shares and clear
of any claims, charges, equities, liens, security interests and incumbrance
whatsoever.
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ARTICLE III
REPRESENTATIONS, COVENANTS, AND WARRANTIES OF OXFORD
As an inducement to, and to obtain the reliance of Crest and the
Shareholder, Oxford represents and warrants as follows:
Section 3.01 ORGANIZATION. Oxford is a corporation duly organized, validly
existing, and in good standing under the laws of the state of Nevada and has the
corporate power and is duly authorized, qualified, franchised, and licensed
under all applicable laws, regulations, ordinances, and orders of public
authorities to own all of its properties and assets to carry on its business in
all material respects as it is now being conducted, and there is no jurisdiction
in which it is not qualified in which the character and location of the assets
owned by it or the nature of the business transacted by it requires
qualification. Included in the Oxford Schedules (as hereinafter defined) are
complete and correct copies of the articles of incorporation and bylaws of
Oxford as in effect on the date hereof. The execution and delivery of this
Agreement does not, and the consummation of the transactions contemplated hereby
will not, violate any provision of Oxford's articles of incorporation or bylaws.
Oxford has taken all action required by law its articles of incorporation, its
bylaws, or otherwise to authorize the execution and delivery of this Agreement,
and Oxford has full power, authority, and legal right and has taken all action
required by law, it articles of incorporation, bylaws, or otherwise to
consummate the transactions herein contemplated.
Section 3.02 CAPITALIZATION. Oxford's authorized capitalization consists of
50,000,000 shares of common stock, par value $.001, and 1,000,000 shares of
Preferred Stock ,of which 34,068,284 common shares are issued and outstanding.
All issued and outstanding shares are legally issued, fully paid, and
non-assessable and not issued in violation of the pre-emptive or other rights of
any person or any applicable securities or Stock Exchange laws or regulations.
Oxford is duly listed on the NASDAQ Bulletin Board and its shares are so listed.
Oxford is in compliance with all applicable laws and regulations and has paid
all Stock Exchange fees which are due.
Section 3.03 SUBSIDIARIES AND PREDECESSOR CORPORATION. Oxford does not have
any subsidiaries and does not own, beneficially or of record, any shares of any
other corporation, except as noted in the schedules attached hereto.
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Section 3.04 FINANCIAL STATEMENTS.
(a) Included in the Oxford Schedule are the audited balance sheets of
Oxford as of December 31, 1994 and 1995, and June 30, 1996, and the related
audited statements of operations, stockholders' equity and changes in
financial position for the two fiscal years ended December 31, 1994 and
1995, and June 30, 1996, together with the notes to such statements and the
opinion of Xxxxxx Xxxxx & Co. L.L.P., independent certified public
accountants, with respect thereto.
(b) All such financial statements have been prepared in accordance
with generally accepted accounting principles consistently applied
throughout the periods involved. The Oxford balance sheets present fairly
as of their respective dates the financial condition of Oxford. Oxford did
not have as of the date of any such Oxford balance sheet, except as and to
the extent reflected or reserved against therein, any liabilities or
obligations (absolute or contingent)which should be reflected in a balance
sheet or the notes thereto prepared in accordance with generally accepted
accounting principles, and all assets reflected therein are properly
reported and present fairly the value of the assets of Oxford, in
accordance with generally accepted accounting principles. The statements of
operations, stockholders's equity and changes in financial position reflect
fairly the information required to be set forth therein by generally
accepted accounting principles.
(c) Oxford has no liabilities with respect to the payment of any
federal, state, county local or other taxes, all Stock Exchange fees
(including any deficiencies, interest or penalties), except for taxes
accrued but not yet due and payable.
(d) Oxford has filed all state, federal or local income and/or
franchise tax returns required to be filed by it from inception to the date
hereof. Included in the Oxford schedules are true and correct copies of the
federal, state and local income tax returns of Oxford filed since the date
of inception. None of such federal income tax returns have been examined by
the Internal Revenue Service. Each of such income tax return reflects the
taxes due for the period covered thereby, except for amounts which, in the
aggregate, are immaterial.
(e) The books and records, financial and otherwise, of Oxford are in
all material aspects complete and correct and have been maintained in
accordance with good business and accounting practices.
(f) Oxford has good and marketable title to its assets, free from any
encumbrances and , except as set forth in the Oxford Schedules or the
Financial Statements of Oxford or the notes thereto and , has no material
contingent liabilities direct or indirect, matured or unmatured.
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Section 3.05 INFORMATION. The information concerning Oxford set for in this
Agreement and the Oxford Schedules is complete and accurate in all material
respects and does not contain any untrue statements of a material fact or omit
to state a material fact required to make the statements made, in light of the
circumstances under which they were made, not misleading.
Section 3.06 OPINSIONS OR WARRANTS. There are no existing options,
warrants, calls, or commitments of any character relating to the authorized and
unissued stock of Oxford, except options, warrants, calls or commitments, if
say, to which Oxford is not a party and by which it is not bound.
Section 3.07 ABSENCE OF CERTAIN CHANGES OR EVENTS. Except as described
herein or in the Oxford Schedules, since the date of the most recent Oxford
balance sheet:
(a) there has not been (i) any material adverse change in the
business, operations, properties, assets or condition of Oxford or (ii) any
damage, destruction or loss to Oxford (whether or not covered by insurance)
materially and adversely affecting the business, operation, properties,
assets or condition of Oxford;
(b) Oxford has not (i) amended its articles of incorporation or
bylaws; (ii) declared or made, or agreed to declare or make any payment of
dividends or distributions of any assets of any kind whatsoever to
stockholders or purchased or redeemed, or agreed to purchase or redeem, any
of its capital stock; (iii) waived any rights of value which in the
aggregate are extraordinary or material considering the business of Oxford;
(iv) made any material change in its method of management, operation, or
accounting; (v) entered into any other material transactions; (vi) made any
accrual of arrangement for or payment of bonuses or special compensation of
any kind or any severance or termination pay to any present former officer
or employee; (vii) increased the rate of compensation payable or to become
payable by it to any of its officers or directors or any of its employees
whose monthly compensation exceed $1,000; or (viii) made any such increase
in any profit sharing, bonus, deferred compensation, insurance, pension,
retirement, or other employee benefit plan, payment, or arrangement, made
to, for or with its officers, directors, or employees;
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(c) Oxford has not (i) granted or agreed to grant any options,
warrants, or other rights for its stocks, bonds, or other corporate
securities calling for the issuance thereof; (ii) borrowed or agreed to
borrow any funds or incurred, or become subject to, any material obligation
or liability (absolute or contingent) except liabilities incurred in the
ordinary course of business; (iii) paid or agreed to pay any material
obligations or liabilities (absolute or contingent) other than current
liabilities reflected in or shown on the most recent Oxford balance sheet
and current liabilities incurred since that date in the ordinary course of
business and professional and other fees and expenses in connection with
the preparation of this Agreement and the consummation of the transaction
contemplated hereby; (iv) sold or transferred, or agreed to sell or
transfer, any of its assets, properties, or rights (except assets,
properties, or rights not used or useful in its business which, in the
aggregate have a value of less than $1000), or canceled, or agreed to
cancel, any debts or claims (except debts or claims which in the aggregate
are of a value less than $1000); (v) made or permitted any amendment or
termination of any contract, agreement, or license to which it is a party
if such amendment or termination is material, concerning the business of
Oxford; or (vi) issued, delivered or agreed to issue or deliver, any stock,
bonds, or other corporate securities including debentures (whether
unauthorized and unissued or held as treasury stock), except in connection
with this Agreement.
(d) to the best knowledge of Oxford, it has not become subject to any
law or regulation which materially and adversely affects, or in the future,
may adversely affect, the business, operations, properties, assets or
condition of Oxford.
Section 3.08 TITLE AND RELATED MATTERS. Oxford has good and marketable
title to all of its properties, inventory, interest in properties, and assets,
real and personal, which are reflected in the most recent Oxford balance sheet
or acquired after that date (except properties, interest in properties, and
assets sold or otherwise disposed of since such date in the ordinary course of
business), free and clear of all liens, pledges, charges, or encumbrances except
(a) statutory liens or claims not yet delinquent; (b) such imperfections of
title and easements as do not and will not materially detract from or interfere
with the present or proposed use of the properties subject thereto or affected
thereby or otherwise materially impair present business operations on such
properties; and (c) as described in the Oxford Schedules.
Section 3.09 LITIGATION AND PROCEEDINGS. There are no actions, suits,
proceedings or investigations pending or, to the knowledge of Oxford after
reasonable investigation, threatened by or against Oxford or affecting Oxford or
its properties, at law or in equity, before any court or other governmental
agency or instrumentality, domestic or foreign, or before any arbitrator of any
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kind. Oxford does not have any knowledge of any default on its part with respect
to any judgement, order, writs, injunction, decree, award, rule or regulation of
any court, arbitrator, or governmental agency or instrumentality or any
circumstance which after reasonable investigation would result in the discovery
of such default.
Section 3.10 CONTRACTS. Oxford is not a party to any material contract,
franchise license agreement, agreement, or other commitments whether such
agreement is in writing or oral except for this Agreement except as noted on the
attached schedule.
Section 3.11 NO CONFLICT WITH OTHER INSTRUMENTS. The execution of this
agreement and the consummation of the transactions contemplated by this
Agreement will not result in the breach of any term or provision of, or
constitute a default under, any indenture, mortgage, deed of trust, or other
material agreement or instrument to which Oxford is a party or to which it or
any of its assets or operations are subject.
Section 3.12 GOVERNMENTAL AUTHORITIES. Oxford has all licenses, franchises,
permits, and other governmental and authorizations, that are legally required to
enable it to conduct its business operation in all material respects as
conducted on the date hereof. Except for compliance with federal and state
securities or corporation laws, as hereinafter provided, no authorization,
approval, consent or order of, of registration, declaration or filing with, any
court or other governmental body is required in connection with the execution
and delivery by Oxford of this Agreement and the consummation by Oxford of the
transactions contemplated hereby
Section 3.13 COMPLIANCE WITH LAWS AND REGULATIONS. To the best of its
knowledge, Oxford has complied with all applicable statutes and regulations of
any federal, state, or other applicable governmental entity or agency thereof,
except to the extent that noncompliance would not materially and adversely
affect the business, operations, properties, assets or conditions of Oxford or
except to the extent that noncompliance would not result in the occurrence of
any material liability. This compliance includes, but is not limited to, the
filing of all reports to date with federal and state securities authorities
Section 3.14 INSURANCE. Oxford owns no insurable properties and carries no
casualty or liability insurance, except as noted in the Oxford statements.
Section 3.15 APPROVAL OF AGREEMENT. The board of directors of Oxford has
authorized the execution and delivery of this Agreement by Oxford and has
approved this Agreement and the transactions contemplated hereby and approved
the submission of the agreement and the transactions contemplated hereby to the
Shareholders of Oxford for their approval with the recommendation that it be
accepted.
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Section 3.16 CONTINUITY OF BUSINESS ENTERPRISES. Oxford has no commitment
or present intention to liquidate Crest or sell or otherwise dispose of a
material portion of Crest's business or assets following the consummation of the
transactions contemplated hereby.
Section 3.17 MATERIAL TRANSACTIONS OF AFFILIATIONS. Except as disclosed
herein and in the Oxford Schedules, there exists no material contract, agreement
or arrangement between Oxford and any predecessor and any person who was at the
time of such contract. agreement or arrangement an officer, director, or person
owning of record or know by Oxford to own beneficially, 10% or more of the
issued and outstanding common stock of Oxford and which is to be performed in
whole or in part after the date hereof or was entered into not more than three
years prior to the date hereof. Neither any officer, director, nor 10%
Shareholders of Oxford has, or has had during the last preceding full fiscal
year, any known interest in any such material transaction with Oxford which was
material to the business of Oxford. Oxford has no commitment, whether written or
oral, to lend any funds to, borrow any money from, or enter into any material
transaction with any such affiliated person.
Section 3.18 EMPLOYMENT MATTERS. Oxford has no employees other than its
executive officers.
Section 3.19 OXFORD SCHEDULES. Prior to closing Oxford will deliver to
Crest the following schedules, which are collectively referred to as the "Oxford
Schedules" and which consist of separate schedules, which are dated the date of
this Agreement, all certified by the chief executive officer of Oxford to be
complete, true, and accurate:
(a) a schedule containing complete and accurate copies of the articles
of incorporation and bylaws of Oxford as in effect as of the date of this
Agreement;
(b) a schedule containing a copy of the Oxford quarterly report on
Form 10- QSB for the six months ended December 31, 1996, including the
unaudited financial statements identified in paragraph 3.04(a);
(c) a schedule containing a copy of the Oxford Form 10-KSB for the
year ended December 31, 1995, which complies in all material respects with
the applicable requirements of the Securities Act of 1934, as amended;
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(d) a schedule containing a copy of all other reports, statements and
registration statements filed or required to be filed with the SEC;
(e) a schedule containing a copy of the federal income tax returns of
Oxford identified in paragraph 3.04(a);
(f) a schedule setting forth the description of any material adverse
change in the business, operations, property, assets, or condition of
Oxford since December 31, 1996, required to be provided pursuant to Section
3.07 hereof;
(g) a list of all Shareholders of Oxford setting forth the address and
number of shares held beneficially and of record; and
(h) a schedule setting forth any other information, together with any
required copies of documents, required to be disclosed to the Stock
Exchange in the Oxford Schedules by Sections 3.01 through 3.18.
Oxford shall cause the Oxford Schedules and the instruments and data
delivered to Shareholders hereunder to be updated after the date hereof up to
and including the Closing Date.
It is understood and agreed that not all of the schedules referred to above
have been completed or are available to be furnished by Oxford. Oxford shall
have a period of twenty (20) days after the date hereof to provide such
schedules. If Oxford cannot or fails to do so, or if Crest reasonably finds the
schedules unacceptable, Crest may terminate this agreement by giving written
notice to Oxford within three (3) days after the schedules were due to be
produced or were provided.
ARTICLE IV
PLAN OF EXCHANGE
Section 4.01 THE EXCHANGE. On the terms and subject to the conditions set
forth in this Agreement, on the Closing Date (as defined in Section 4.04), the
Shareholder hereby agrees to assign, transfer, and deliver to Oxford, free and
clear of all liens, pledges, encumbrances, charges, restrictions or known claims
of any kind, nature, or description, the number of shares of common stock of
Crest set after his signature at the foot of this Agreement, in the aggregate
constituting at least 100% of the issued and outstanding shares of common stock
of Crest and Oxford agrees to acquire such shares on such date by issuing and
delivering in exchange therefore 5,333,333 units, consisting of 5,333,333 newly
issued common shares of Oxford, par value $0.001 and 5,333,333 warrants,
(together the "Exchanged Units") with an exercise price of $1.00, exercisable
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for one share of new issued common-stock of Oxford, par value $0.001 at any time
until the third anniversary of the closing of this agreement. In addition Oxford
shall issue 500,000 new $5 redeemable convertible voting preferred shares, ("the
Preferred Shares") to the shareholder. The preferred shares are callable by
Oxford in increments of 100,000 shares on the following schedule; six (6) months
from the closing date, unless extended by Oxford and if such extension is
requested the first redemption of 100,000 shares shall be twelve (12) months
from the closing date; 100,000 shares six months from the redemption of the
first redemption; and another 100,000 shares on the six months after the second
redemption date. The remaining 200,000 Preferred Shares will be called on the
date twenty four (24) months after the date of the first redemption. This last
redemption shall be adjusted, for credit to Oxford by the total of any payments
made by Oxford, to CNA, in excess of $898,480.
The Preferred Shares may be converted to common shares by the holder on the
basis of five newly issued common shares, par value $0.001, for each preferred
share at any time after the issuance. Oxford my accelerate the call of the
Preferred Shares at the option of Oxford. In the event that Oxford does not call
the Preferred Shares according to the aforementioned schedule the holder of the
Preferred Shares shall have the right to put those Preferred Shares that were to
be called, to Xxxxxx Xxxxxx, who shall have thirty days from the date of
notification by the holder of the Preferred Shares to complete the execution of
the put. In the event that Xxxxxx Xxxxxx does not exercise the put of the
Preferred Shares, the holder of the Preferred Shares may require the controlling
shareholder(s) to request the resignation of a majority of the members of the
Board of Directors of Oxford and replace these directors with the holders of the
Preferred Shares slate of directors, who may then approve the distribution of
Crest and Rx Staffing Corp., a wholly owned subsidiary of Oxford, to a new
company controlled by the holder of the Preferred Shares. After this transfer
the new slate of directors shall then resign and be replaced by new directors
approved by the controlling shareholder(s).
All newly issued shares of Oxford common stock issued under any of the
conditions of this Agreement will be acquired for investment only, and not with
the view of distribution, and the holder of the shares will be required to
furnish Oxford with a Letter of Investment satisfactory to counsel. Oxford shall
allow piggy back rights on all newly issued stock and warrants subject to the
approval of the underwriter. However, any warrants exercised will carry ninety
day registration rights of those underlying shares provided that the exercise of
the warrants has taken place at least eighteen months from the date of issuance
of the units. In the event that Oxford places an underwriting of its stock and
should that underwriting be oversubscribed the warrants and stock issued for the
sale of the assets shall be placed into that offering, subject to approval by
the underwriter. Xxxxxx Xxxxxx shall have a call on the warrants described above
at a price of $2.00 at anytime after closing up to and including the first
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anniversary date of the closing of this Agreement. In the event the warrants are
exercised by the holder(s) within the first year after the closing, then the
call price by Xxxxxx Xxxxxx shall be $3.00 and expire on the first anniversary
date of the closing. Should Xxxxxx Xxxxxx not exercise his call during the
period from the closing date up to and including the first year anniversary date
then his rights to a call on the Warrants and shares issued thereunder shall
expire.
Section 4.02 ANTI-DILUTION. The number of shares of Exchanged Oxford Stock
shall be appropriately adjusted to take into account for any stock split, stock
dividend, reverse stock split, recapitalization, or similar change in the Oxford
common stock which may occur between the date of the execution of this Agreement
and the delivery date of the shares. The share capital of Oxford shall be
adjusted in accordance with the desires of the Oxford underwriter or investor(s)
who shall provide Oxford with new equity in excess of $5,000,000.00. Such share
adjustment shall come solely from the shares held by Xxxxx Xxxxxxx. In no event
shall the Shareholder receive less than ________% of the issued and outstanding
shares of Oxford taking into consideration the requirement for share issuance to
the contemplated merger candidates, Xxxxxxx Leasing, Inc. and PRC Enterprises,
Inc.
Section 4.03 CLOSING. The closing ("Closing") of the transactions
contemplated by this Agreement shall be on a date and at such time as the
parties may agree ("Closing Date"), within the ten-day period commencing with
the last to occur of the following: the Oxford Shareholders' meeting and such
date as may be prescribed by any federal or state regulatory agency or authority
prior to which the transactions contemplated hereby may not be effectuated and
the expiry of the 20 day periods in clause 1.18 and 3.19 to provide schedules.
Such Closing shall take place at a mutually agreeable time and place.
Section 4.04 CLOSING EVENTS. At the Closing, each of the respective parties
hereto shall execute, acknowledge, and deliver (or shall ensure to be executed,
acknowledged, and delivered) any and all certificates, opinions, financial
statements, schedules, agreements, resolutions, ruling or other instruments
required by this Agreement to be so delivered at or prior to the Closing,
together with such other items as may be reasonably requested by the parties
hereto and their respective legal counsel in order to effectuate or evidence the
transactions contemplated hereby.
Section 4.05 TERMINATION.
(a) This Agreement may be terminated by the board of directors of
either Oxford or Crest at any time prior to the Closing Date if:
(i) there shall be any actual or threatened action or proceeding
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before any court or any governmental body which shall seek to
restrain, prohibit, or invalidate the transactions contemplated by
their Agreement and which, in the judgement of such board of
directors, made in good faith and based upon the advice of its legal
counsel, makes it inadvisable to proceed with the exchange
contemplated by this Agreement;
(ii) any of the transactions contemplated hereby are disapproved
by any regulatory authority whose approval is required to consummate
such transactions or in the judgement of such board of directors, made
in good faith and based on the advice of counsel, there is substantial
likelihood that any such approval will not be obtained or will be
obtained only on a condition or conditions which would be unduly
burdensome, making it inadvisable to proceed with the exchange; or
(iii) there shall have been any change after the date of the
latest balance sheets of Oxford and Crest, respectively, in the
assets, properties, business, or financial condition of Oxford or
Crest, which could have a materially adverse affect on the value of
the business of Oxford or Crest, respectively, except any changes
disclosed in the Oxford or Crest Schedules, as the case may be, dated
as of the date of the execution of this Agreement.
(iv) the Board of Directors of Oxford or Crest or the Shareholder
determine in good faith that a condition to closing has not occurred.
In the event of termination pursuant to this paragraph (a) of Section 4.06,
no obligation, right or liability shall arise hereunder, and each party shall
bear all of the expenses incurred by it in connection with the negotiation,
drafting, and execution of this Agreement and the transactions herein
contemplated.
(b) This Agreement may be terminated at any time prior to the Closing
by action of the board of directors of Oxford, if Crest shall fail to
comply in any material respect with any of its covenants or agreements
contained in this Agreement or if any of the representations or warranties
of Crest contained herein shall be inaccurate in any material respect. If
this Agreement is terminated pursuant to this paragraph (b) of Section
4.06, this Agreement shall be of no further force or effect, and no
obligation, right or liability shall arise hereunder, except that Crest
shall bear its own costs as well as the reasonable costs of Oxford in
connection with the negotiations, preparation, and execution of this
Agreement and matters in connection therewith.
(c) This Agreement may be terminated at any time prior to the Closing
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Date by action of the board of directors of Crest or by the Shareholder if
Oxford shall fail to comply in any material respect with any of its
covenants or agreements contained in this Agreement or if any of the
representations or warranties of Oxford contained herein shall be
inaccurate in any material respect. If this Agreement is terminated
pursuant to this paragraph (c) of Section 4.06, this Agreement shall be of
no further force or effect, and no obligation, right or liability shall
arise hereunder, except that Oxford shall bear its own costs as well as the
reasonable costs of Crest and the Shareholder incurred in connection with
the negotiation, preparation and execution of this Agreement.
ARTICLE V
SPECIAL COVENANTS
Section 5.01 STOCKHOLDER MEETINGS OF OXFORD. As soon as practicable
following the execution of this Agreement, and prior to the Closing, Oxford
shall call a special meeting of its Shareholders to approve the following
proposals:
(a) the authorization and approval of this Agreement and the
transactions contemplated thereby;
(b) to take such other actions as the directors may determine are
appropriate.
Section 5.02 ACCESS TO PROPERTIES AND RECORDS. Oxford and Crest will each
afford to the officers and authorized representatives of the other and the
Shareholder full access to the properties, books and records of Oxford or Crest
as the case may be, in order that each may have full opportunity to make such
reasonable investigation as it shall desire to make of the affairs of the other,
and each will furnish the other with such additional financial and operating
data and other information as to the business and properties of Oxford or Crest,
as the case may be, as the other shall from time to time reasonably request.
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Section 5.03 DELIVERY OF BOOKS AND RECORDS. At the Closing, Crest shall
deliver to Oxford the originals of the corporate minute books, books of account,
contracts, records, and all other books or documents of Oxford now in the
possession of Oxford or its representatives.
Section 5.04 SPECIAL COVENANTS AND REPRESENTATIONS REGARDING THE EXCHANGED
OXFORD STOCK. The consummation of this Agreement and the transactions herein
contemplated, including the issuance of the Exchanged Stock to the Shareholder
of Crest as contemplated hereby, constitutes the offer and sale of securities
under the Securities and Exchange Act and applicable state statutes. Such
transactions shall be consummated in reliance on exemptions from the
registration and prospectus delivery requirements of such statutes which depend,
inter alia, upon the circumstances under which the Shareholder acquires such
securities. In connection with reliance upon exemptions from the registration
and prospectus delivery requirements for such transactions, at the Closing,
Crest shall cause to be delivered, and the Shareholder shall deliver to Oxford,
letters of representation in the form attached hereto as Exhibit "A".
Section 5.05 THIRD PARTY CONSENTS AND CERTIFICATES. Oxford and Crest agree
to cooperate with each other in order to obtain any required third party
consents to their Agreement and the transactions herein and therein
contemplated.
Section 5.06 ACTIONS PRIOR TO CLOSING.
(a) From and after the date of this Agreement until the Closing Date
and except as set forth in the Oxford or Crest Schedules or as permitted or
contemplated by this Agreement, Oxford and Crest respectively, will each:
(i) carry on its business in substantially the same manner as it
has heretofore;
(ii) maintain and keep its properties in states of good repair
and condition as at present, except for depreciation due to ordinary
wear and tear and damage due to casualty;
(iii) maintain in full force and effect insurance comparable in
amount and in scope of coverage to that now maintained by it;
(iv) perform in all material respects all of its obligations
under material contracts, leases, and instruments relating to or
affecting its assets, properties, and business;
(v) use its best reasonable efforts to maintain and preserve its
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business organization intact, to retain its key employees, and to
maintain its relationship with its material suppliers and customers;
and
(vi) fully comply with and perform in all material respects all
obligations and duties imposed on it by all federal and state laws and
all rules, regulations, and orders imposed by federal or state
governmental authorities.
(b) From and after the date of their Agreement until the Closing Date,
neither Oxford nor Crest will:
(i) make any changes in their articles of incorporation or
bylaws.
(ii) take any action described in Section 1.07 in the case of
Crest, or in Section 3.07, in the case of Oxford (all except as
permitted therein or as disclosed in the applicable party's
schedules); or
(iii) enter into or amend any contract, agreement, or other
instruments of any of the types described in such party's schedules,
except that a party may enter into or amend any contract, agreement,
or other instrument in the ordinary course of business involving the
sale of goods or services.
Section 5.07 SALES UNDER RULE 144 OR 145, IF APPLICABLE.
(a) Oxford will use its best reasonable efforts to at all times comply
with the reporting requirements of the Securities Exchange Act of 1934, as
amended (the "Exchange Act") and NASD, including timely filing of all
periodic reports required under the provisions of the Exchange Act and the
rules and regulations promulgated thereunder.
(b) Upon being informed in writing by any such person holding
restricted stock of Oxford as of the date of their Agreement that such
person intends to sell any shares under Rule 144 or Rule 145 promulgated
under the Securities Act (including any rule adopted in substitution or
replacement thereof), Oxford will certify in writing to such person that it
has filed all of the reports required to be filed by it under the Exchange
Act to enable such person to sell such person's restricted stock under Rule
144 or 145, as may be applicable in the circumstances, or will inform such
person in writing that it has not filed any such report or reports.
(c) If any certificate representing any such restricted stock is
presented to Oxford's transfer agent for registration of transfer in
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connection with any sale theretofore made under Rule 144 or 145, provide
such certificate is duly endorsed for transfer by the appropriate person(s)
or accompanied by a separate stock power duly executed by the appropriate
person(s) in each case with reasonable assurances that such endorsements
are genuine and effective, and is accompanied by an opinion of counsel
satisfactory to Oxford and its counsel that stock transfer has complied
with the requirements of Rule 144 or 145, as the case may be, Oxford will
promptly instruct its transfer agent to register such shares and to issue
one or more new certificates representing such shares to the transferee
and, if appropriate under the provisions of Rule 144 or 145, as the case
may be, free of any stop transfer order or restrictive legend. The
provisions of their Section 5.07 shall survive the Closing and the
consummation of the transactions contemplated by their Agreement.
Section 5.08 INDEMNIFICATION.
(a) Crest and the Shareholder hereby agree to indemnify Oxford and
each of the officers, agents and directors of Oxford as of the date of
execution of their Agreement against any loss, liability, claim, damage, or
expense (including, but not limited to, any and all expense whatsoever
reasonably incurred in investigating, preparing, or defending against any
litigation, commenced or threatened, or any claim whatsoever), to which it
or they may become subject arising out of or based on any inaccuracy
appearing in or misrepresentations made under Articles I and II of their
Agreement. The indemnification provided for in their paragraph shall
survive the Closing and consummation of the transactions contemplated
hereby and termination of this Agreement.
(b) Oxford hereby agrees to indemnify Crest and the Shareholder and
each of the officers, agents, and directors of Crest as of the date of
execution of their Agreement against any loss, liability, claim, damage, or
expense (including, but not limited to, any and all expense whatsoever
reasonably incurred in investigating, preparing, or defending against any
litigation, commenced or threatened, or any claim whatsoever), to which it
or they may become subject arising out of or based on any inaccuracy
appearing in or misrepresentation made under Article III of their
Agreement. The indemnification provided for in their paragraph shall
survive the Closing and consummation of the interactions contemplated
hereby and termination of this Agreement.
ARTICLE VI
CONDITIONS PRECEDENT TO OBLIGATIONS OF OXFORD
The obligations of Oxford under this Agreement are subject to the
satisfaction, at or before the Closing Date, of the following conditions:
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Section 6.01 ACCURACY OF REPRESENTATIONS. The representations and
warranties made by Crest and the Shareholder in this Agreement were true when
made and shall be true at the Closing Date with the same force and effect as if
such representations and warranties were made at and as of the Closing Date
(except for changes therein permitted by this Agreement), Crest and the
Shareholder shall have performed or complied with all covenants and conditions
required by this Agreement to be performed or complied with by Crest and the
Shareholder prior to or at the Closing. Oxford shall be furnished with a
certificate, signed by a duly authorized executive officer of Crest and dated
the Closing Date, to the foregoing effect.
Section 6.02 OFFICER'S CERTIFICATE. Oxford shall have been furnished with a
certificate dated the Closing Date and signed by a duly authorized officer of
Crest to the effect that no litigation, proceeding, investigation, or inquiry is
pending, or to the knowledge of Crest threatened, which might result in an
action to enjoin or prevent the consummation of the transactions contemplated by
their Agreement, or, to the extent not disclosed in the Crest Schedules, by or
against Crest, which might result in any material adverse change in any of the
assets, properties, business, or operations of Crest.
Section 6.03 NO MATERIAL ADVERSE CHANGE. Prior to the Closing Date, there
shall not have occurred any material adverse change in the financial condition,
business, or operations of Crest nor shall any event have occurred which, with
the lapse of time or the giving of notice, may cause or create any material
adverse change in the financial condition, business or operations of Crest.
Section 6.04 GOOD STANDING. Oxford shall have received a certificate of
good standing from the proper authority dated as of a date within ten days prior
to the Closing Date certifying that Crest is in good standing as a corporation
in Canada.
Section 6.05 OFFICER AND DIRECTOR QUESTIONNAIRES. Oxford shall have
received officer and director questionnaires completed and signed by each
executive officer and director of Crest in form and substance reasonably
satisfactory to Oxford and its counsel which shall contain information for use
by Oxford in reporting the transaction contemplated hereby on Form 8-K to be
filed with the Securities and Exchange Commission.
Section 6.06 OTHER ITEMS.
(a) Oxford shall have received a Shareholders list of Crest containing
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the name, address, and number of shares held by each Crest Shareholder as
of the date of Closing certified by an executive officer of Crest as being
true, complete and accurate,
(b) Oxford shall have received such further documents, certificates or
instruments relating to the transactions contemplated hereby as Oxford may
reasonably request.
ARTICLE VII
CONDITIONS PRECEDENT TO OBLIGATIONS OF CREST
AND THE SHAREHOLDER
The obligations of Crest and the Shareholder under this Agreement are
subject to the satisfaction, at or before the Closing Date, of the following
conditions:
Section 7.01 ACCURACY OF REPRESENTATIONS. The representations and
warranties made by Oxford in this Agreement were true when made and shall be
true as of the Closing Date (except for changes therein permitted by this
Agreement) with the same force and effect as if such representations and
warranties were made at and as of the Closing Date, and Oxford shall have
performed and complied with all covenants and conditions required by this
Agreement to be performed or complied with by Oxford prior to or at the Closing,
Crest shall have been furnished with a certificate, signed by a duly authorized
executive officer of Oxford and dated the Closing Date, to the foregoing effect.
Section 7.02 STOCKHOLDER APPROVAL. The stockholders of Oxford shall have
approved this Agreement, the transactions contemplated hereby, and the other
matters described in Section 4.01.
Section 7.03 OFFICER'S CERTIFICATE. Crest shall have been furnished with a
certificate dated the Closing Date and signed by a duly authorized executive
officer of Oxford, to the effect that no litigation, proceeding, investigation
or inquiry is pending, or to the best knowledge of Oxford threatened, which
might result in an action to enjoin or prevent the consummation of the
transactions contemplated by this Agreement.
Section 7.04 NO MATERIAL ADVERSE CHANGE. Prior to the Closing Date, there
shall not have occurred any material adverse change in the financial condition,
business or operations of Oxford nor shall any event have occurred which, with
the lapse of time or the giving of notice, may cause or create any material
adverse change in the financial condition, business or operations of Oxford.
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Section 7.05 GOOD STANDING. Crest shall have received a certificate of good
standing from the Secretary of State of the state of Nevada or other appropriate
office, dated as of a date within twenty days prior to the Closing Date
certifying that Oxford is in good standing as a corporation in the state of
Nevada and has filed all tax returns required to have been filed by it to date
and has paid all taxes reported as due thereon.
Section 7.06 NO ACTION BY SEC Oxford shall not be subject to any stop
order, enforcement action or other proceeding or investigation initiated against
Oxford, its officers or directors by the SEC or NASD.
Section 7.07 OTHER ITEMS.
(a) Crest shall have received a Shareholders list of Oxford, current
at least twenty (20) days prior to Closing, containing the name, address
and number of shares held by each such Oxford Shareholders certified by an
executive officer of Oxford as being true, complete and accurate,
(b) Crest shall have received further documents, certificates, or
instruments relating to the transactions contemplated hereby as Crest may
reasonably request.
(c) Crest shall have received uniform commercial code certificates
from the appropriate state of local authorities dated as of the Closing
Date to the effect that there were no liens on the properties of Oxford
ARTICLE VIII
MISCELLANEOUS
Section 8.01 BROKERS. Oxford and Crest agree that there were no finders or
brokers involved in bringing the parties together or who were instrumental in
the negotiation, execution or consummation of their Agreement. Oxford and Crest
each agree to indemnify the other against any claim by any third person other
than those described above for any commission, brokerage, or finder's fee
arising form the transactions contemplated hereby based on any alleged agreement
or understanding between the indemnifying party and such third person, whether
express or implied from the actions of the indemnifying party.
Section 8.02 GOVERNING LAW. Their Agreement shall be governed by, enforced,
and construed under and in accordance with the laws of the United States of
America and, with respect to the matters of state law, with the laws of Nevada.
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Section 8.03 NOTICES. Any notice or other communications required or
permitted hereunder shall be sufficiently given if personally delivered to it or
sent by registered mail or certified mail, postage prepaid, or by prepaid
telegram addressed as follows:
If to Oxford, to: Oxford Capital Corp.
0000 Xxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
With copies to: Vanderkam & Xxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxx 00000
If to Crest: Crest Outsourcing, Inc.
Xxx XxXxxxxx
00000 Xxxxx Xxxxx
Xxxxxx, XX 00000
If to Shareholder: American Teletronics, Inc.
Xxx XxXxxxxx
00000 Xxxxx Xxxxx
Xxxxx 000
Xxxxxx, XX 00000
or such other addresses as shall be furnished in writing by any party in the
manner for giving notices hereunder, and any such notice or communication shall
be deemed to have been given as of the date so delivered, mailed or telegraphed.
Section 8.04 ATTORNEY'S FEES. In the event that any party institutes any
action or suit to enforce this Agreement or to secure relief from any default
hereunder or breach hereof, the breaching party or parties shall reimburse the
nonbreaching party or parties for all costs, including reasonable attorney's
fees, incurred in connection therewith and in enforcing or collecting any
judgement rendered therein.
Section 8.05 CONFIDENTIALITY. Each party hereto agrees with the other
parties that, unless and until the transactions contemplated by this Agreement
have been consummated, it and its representatives will hold in strict confidence
all data and information obtained with respect to another party or any
COI February 14, 1997
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subsidiary thereof from any representative, officer, director or employee, or
from any books or records or from personal inspection, as such other party, and
shall not use such disclosure data or information or disclose the same to
others, except (i) to the extent such data or information is published, is a
matter of public knowledge, or is required by law to be published; and (ii) to
the extent that such disclosure data or information must be used or disclosed in
order to consummate the transactions contemplated by this Agreement. In the
event of the termination of this agreement, each party shall return to the other
party all documents and other materials obtained by it or on its behalf and
shall destroy all copies, digests, work papers, abstracts or other materials
relating thereto, and each party will continue to comply with the
confidentiality provisions set forth herein.
Section 8.06 SCHEDULES; KNOWLEDGE. Each party is presumed to have full
knowledge of all information set forth in the other party's schedules delivered
pursuant to this Agreement.
Section 8.07 THIRD PARTY BENEFICIARIES. This Agreement is strictly between
Oxford and Crest, and the Shareholder and, except as specifically provided, no
director, officer, stockholder, employee, agent, independent contractor or any
other person or entity shall be deemed to be a third party beneficiary of this
Agreement.
Section 8.08 ENTIRE AGREEMENT. This Agreement represents the entire
agreement between the parties relating to the subject matter thereof.
Section 8.09 SURVIVAL; TERMINATION. The representations, warranties, and
covenants of the respective parties shall survive the Closing Date and the
consummation of the transactions herein contemplated for a period of three
months.
Section 8.10 COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original and all of which taken
together shall be but a single instrument. Solely for the purpose of this
facsimile signatures shall be deemed original signatures.
Section 8.11 AMENDMENT OR WAIVER. Every right and remedy provided herein
shall be cumulative with every other right and remedy, whether conferred herein,
at law, or in equity, and may enforced concurrently herewith, and no waiver by
any party of the performance of any obligation by the other shall be construed
as a waiver of the same of any other default then, theretofore, or thereafter
occurring or existing. At any time prior to the Closing Date, this Agreement may
COI February 14, 1997
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by amended by any writing signed by all parties hereto, with respect to any of
the terms contained herein, and say term or condition of this Agreement may be
waived or the time for performance may be extended by a writing signed by the
party or parties for whose benefit the provision in intended.
IN WITNESS WHEREOF, the corporate parties and the Shareholder hereto have
caused this Agreement to be executed by their respective officers, hereunto duly
authorized, as of the date first-above written.
ATTEST: OXFORD CAPITAL CORP.
/s/ Xxxxxx Xxxxxxx BY: /s/ Xxxxxx X. Xxxxxx
-------------------------------- -------------------------------------------
Secretary or Assistant Secretary Xxxxxx X. Xxxxxx, President
ATTEST: CREST OUTSOURCING, INC.
/s/ Xxx XxXxxxxx BY: /s/ Xxxxx Xxxxx
-------------------------------- -------------------------------------------
Secretary or Assistant Secretary Xxxxx Xxxxx
ATTEST: AMERICAN TELETRONICS, INC.
/s/ X. X. Xxxxxx BY: /s/ Xxxxx Xxxxx
-------------------------------- -------------------------------------------
X. X. Xxxxxx Xxxxx Xxxxx
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EXHIBIT A
NAME SHARES OF CREST SHARES OF OXFORD
--------------------- --------------- ----------------
American Teletronics Common 1,000 Common 5,333,333
Preferred 500,000
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